Asu Ram and anr. Vs. State and ors. - Court Judgment

Rajesh Balia, J.

1. This is a petition filed by two petitioners; one Asu Ram, a resident of Ward No. 14 Village Palana and other Kheta Ram, who is Ward Panch of Gram Panchayat Palana - a Panchayati Raj Institution, challenging the order dated 7.4.2001 (Annex.5) passed by State Govt. in purported exercise of its power Under Section 97 of the Rajasthan Panchayati Raj Act, 1994 directing stay of the operation of order passed by Divisional Commissioner, Bikaner on 21st March, 2001 declaring the respondent No.3, the Sarpanch of said Gram Panchayat, by holding that he suffers from disqualification Under Section 19(1) and declaring the office of Sarpanch to be vacant in terms of Section 39 of the said Act.

2. The contention of the learned Counsel for the petitioners is that the State Govt. has no jurisdiction to revise or reject the order passed by the Competent Authority Under Section 39 by invoking powers Under Section 97. He contends that the power Under Section 97 be invoked only In respect of proceedings of the Panchayati Raj Institution or Standing Committee or Sub-Committee thereof but the said power do not reach the proceedings before the Competent Authority investigating into the disqualification of the holder of an office of any Panchayati Raj Institution and on finding that any person suffers from any disqualification Under Section 19 of the Act of 1994, he is required to declare the office to be vacant.

3. Learned Counsel for the respondent No.3 joins issue on that ground. He has further submitted that assuming that the State Govt. has no authority to interfere with the order of the Divisional Commissioner, the order of the Divisional Commissioner itself is not sustainable in law inasmuch as the same has been passed in breach of principles of natural justice and is not supported by any reason for reaching his conclusion about the disqualification of the respondent No.3. He submits that extra ordinary jurisdiction Under Article 226 ought not to be invoked to restore an illegal order for the purpose of perpetuating the same. In this connection, he further invited attention of the Court that in his return he has raised a counter claim challenging the validity of order dated 21.3.2001 (Annex. 1) passed by the Divisional Commissioner and prayed for quashing the same. To meet any technical objection for claiming such relief by way of defence it has been submitted that his return may be treated as his petition for which necessary court fees has already been paid and the validity of the order passed by the Divisional Commissioner itself may be examined.

4. Heard learned Counsel for the parties. The record of the proceedings before the Commissioner was also perused which was directed to be made available to the Court and the learned Counsel for the parties were also allowed to have the inspection of the said record.

5. On a complaint made by petitioner No. 1 that the respondent No.3, who has been elected as a Sarpanch had four children at the time of election and at least one of such four children was born after 27th Nov., 1995, the date on which the aforesaid provision was inserted. A person having more than two children is disqualified to be member of any Panchayati Raj Institution. The respondent No.3, on being served with the notice Under Section 39 of the Act, had in the first instance moved this Court by way of a writ petition No. 1087/2001 challenging the validity of the said enquiry. His contention was that he has been elected to the office of Sarpanch and his election has been challenged by Election Petition on the ground that his nomination has improperly been accepted because he was disqualified on account of birth of fourth child after 27.11.1995. Therefore, during the pendency of the Election Petition in which the very issue for which enquiry is sought to be conducted, was subject matter, no enquiry Under Section 39(1)(a) could be held on the very same issue. Said petition was dismissed by this Court on 22nd March, 2001 and the Competent Authority was directed to conclude the enquiry expeditiously preferably within a period of three months from the date of the filing of the certified copy of the said order before him. The petitioner was also directed to co-operate with the enquiry and in case he did not do so, the enquiry officer was directed to proceed exparate after recording the reasons.

6. The petitioner entered his defence before the enquiry officer by contending that all his four issues were born prior to the relevant date of 27th Nov., 1995, the last child was born to him on 25.9.1993 and according to him in support of his contention he has also produced the copies of the birth register recording the entries on 13.1.2000 at Serial Nos. 5, 6, 7 & 8 respectively at Gram Panchayat, Palana. The said proceedings ultimately resulted in order Annex. 1, which reads as under:

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dzekad % i01389lavkch@eksuh@tkap@chdk@2001@4522 fnukad 21-3-2001dk;kZy; vkns'kJh eksguyky] ljiap] xzke iapk;r iykuk] iapk;r lfefr chdkusj ds fo: 27-11-1995 ds i'pkr~ pkSFkh larku mRiUu gksus dh f'kdk;r izkIr gksus ij fu;ekuqlkj izkFkfed tkap fodkl vf/kdkjh@eq[; dk;Zdkjh vf/kdkjh ls djokbZ xbZA izkFkfed tkap esa tkap vf/kdkjh }kjk rhljh larku gksus dh iqf'V dh tkus ij Jh eksgu yky ljiap] xzke iapk;r iykuk dks uksfVl tkjh dj yxk;s x;s vkjksiksa ij Li'Vhdj.k izkIr fd;k x;kA ljiap }kjk Li'Vhdj.k izLrqr dj vkjksaiks dk [kaMu djus ij izdj.k esa vfr0 dyDVj iz'kklu ls foLr`r tkap djokbZ xbZA foLr`r tkap esa Hkh tkap vf/kdkjh }kjk pkSFkh larku fnukad 27-11-1995 ds i'pkr~ rFkk ikapoh larku fnukad 19-1-2001 dks gksus dh iqf'V dh xbZA

foLr`r tkap ds ifjizs{; esa Jh eksguyky ljiap] xzke iapk;r iykuk] iapk;r lfefr chdkusj] ftyk chdkusj jktLFkku iapk;rh jkt vf/kfu;e] 1994 dh /kkjk 19B ds vUrxZr ljiap in gsrq v;ksX;rk /kkj.k djus ds nks'kh ik;s x;s gSaA vr% jktLFkku ljdkj dh vf/klwpuk dzekad ia0 ijkfo@tujy@99@4195 fnukad 28-9-1999 rFkk lela[;d vf/klwpuk fnukad 16-5-2000 esa iznRr 'kfDr;ksa ds ifjizs{; esa jktLFkku in ij cus jgus ds vik= ?kksf'kr djrs gq, mudh ljiap in dh lnL;rk lekIr dh tkdj ij fjDr ?kksf'kr fd;k tkrk gSA

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7. The above order records that a fifth child has also been born to the respondent on 19th Jan., 2001 about which finding the respondent has made a complaint that he was never given notice about having a fifth issue during the continuance of the proceedings and that fact has also been taken into account without enquiring whether in fact that the respondent was blessed with the fifth child in fact or not.

8. It will be relevant to reproduce the provisions of Section 39 and Section 97 to understand the interplay of the two provisions.

Section 39. Cessation of membership.--(1) A member of a Panchayati Raj Institution shall not eligible to continue to be such member if he

(a) is or becomes subject to any of the disqualification specified in Section 19; or

(b) has absented himself from three consecutive meetings of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institutuion; or

(c) is removed from the membership; or (d) resigns from the membership; or

(e) dies; or

(f) falls to make the prescribed oath or affirmation of the office of membership within three months from the date of election or appointment.

(2) Whenever it made to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in Sub-section(1) the concerned authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member.

Provided that until a declaration under this Sub-section is made he shall continue to hold his office.

Section 97. Power of revision and review by Government--

(1) The State Government may, either of its own motion or on an application from any person interested, call for and examine the record of a Panchayati Raj Institution or of a Standing Committee of Sub-Committee thereof in respect of any proceedings to satisfy itself as to the correctness, legality or propriety of any decision or order passed therein or as to the regularity of such proceedings and, if in any case, It appears to the State Government that any such decision or order be modified, annulled, reversed or remitted for reconsideration, it may pass order accordingly.Provided that the State Government shall not pass any order prejudicial to any party unless such party has had a reasonable opportunity of being heard in the matter.

(2) The State Government may stay the execution of any such decision or order prejudicial to any party, pending the exercise of its powers under Sub-section (1) in respect thereof.

(3) The State Government may, of its own motion or on an application received from any person interested, at any time, within ninety days of the passing of an order under Sub-section (1), review any such order if it was passed by it under any mistake, whether of fact or of law or in ignorance of any material fact. The provisions contained in the proviso to Sub-section (1) and in Sub-section (2) shall apply to a proceeding under this Sub-section.

9. It may also be relevant to notice the scheme of the Panchayati Raj Institutions in this connection. The Panchayati Raj Institution has been defined Under Clause (xvii) to Section 2 to mean an institution of self Government established under this Act for rural areas, whether at the level of the village or a block or a district. The various institutions which are to be established under the provisions of the Act are Panchayat, Panchayat Samiti, Zila Parishad and the functions of each of these Panchayati Raj Institutions and the respective powers and duties ordained for the persons holding various offices under such institutions have been separately defined under various provisions.

10. With these presincts of the establishment of the Panchayati Raj Institutions and demarcating their fuctions, obligations and duties of respective holders of the offices Chapter IV deals with the power of the State Govt. in the matter of superintendence over the functions of these Panchayati Raj Institutions. Section 92 empowers the State Govt. to cancel or supersede resolutions of a Panchayati Raj Institution. Section 94 empowers the Govt. to dissolve a Panchayati Raj Institution in the facts and circumstances mentioned therein and provides for consequential measures as a result of dissolution. The State Govt. is also entrusted with power to invest surplus funds. Section 100 authories inspection and enquiry by the State Govt. of any immovable property owned, used or occupied by the Panchayati Raj Institutions or any work in progress under the directions of the Panchayati Raj Institutions, which inter-alia includes power of calling and inspecting books or documents in possession or under control of the concerned Panchayati Raj Institution and also directions to furnish such statements, reports or copies of documents relating to the proceedings or the duties of such Panchayati Raj Institution as it thinks fit. It is in this scheme of superintendence/supervisory powers over the functioning of the Panchayati Raj Institutions in its various fields of activities, obligations and duties the provision of Section 97 finds its place. Section 97 on its own term permits the State Govt. to call for and examine the record of a Panchayati Raj Institution or of a Standing Committee or Sub-Committee thereof in respect of any proceedings to satisfy itself as to the correctness, legality or propriety or any decision or order passed therein or as to the regularity of such proceedings and in case it appears to the State Govt. that if any decision or order is to be modified, annulled, reversed or remitted, it may pass orders accordingly. It is apparent that Section 97 is confined to the calling for and examining the record of the Panchayati Raj Institutions in respect of any proceedings which takes place in the course of functioning of such Panchayati Raj Institutions, to satisfy about the correctness, legality and propriety there of and not to any other matters. Can it be said that this power can be extended to the proceedings taken by the authorities in exercise of certain statutory powers conferred on them and which are not the proceedings of the concerned Panchayati Raj Institution in discharge of their functions, obligations, and duties or in exercise of any powers conferred on such Panchayati Raj Institution, independent of its powers, functions and duties? Can a proceeding Under Section 39 taken by the Competent Authority, which affects the very constitution of the institution itself be considered to be a proceeding of the Panchayati Raj Institution concerned? In other words, the question that calls for answer is whether the proceedings Under Section 39 can be said to be a proceeding of the Panchayati Raj Institutions namely the Panchayati, the Panchayat Samiti or the Zila Parishad as the institution established under Chapter-Ill of the Act in relation to the powers to be used and obligations to be discharged by it through various holders of offices under those institutions.

11. In the aforesaid set up of scheme, I am of the opinion that proceedings Under Section 39, which relates to the constitution of Panchayati Raj Institutions, though may be a proceedings relating to a Panchayati Raj Institution, but the same cannot be said to be the proceedings of Panchayati Raj Institution or any of its sub-committees to which the power of superintendence envisaged under Chapter-IV under various provisions takes within its ambit. The enquiry conducted by Competent Authority Under Section 39 to find whether any person holding the office as a member of the Panchayati Raj Institution suffers from any disqualification as prescribed Under Section 19 and is eligible to be continued as such member or not. Such is not a proceeding of the Panchayati Raj Institutions but proceeding by the Competent Authority, statutorily authorised to hold such enquiry and pass appropriate order, is a proceeding in respect of a Panchayati Raj Institution. Any proceeding relating to Panchayati Raj institution has not been made subject matter of the revisional powers of the State Under Section 97 but only the proceedings of the Panchayati Raj Institution itself that has been made subject matter of revision Under Section 97 of the Act. Therefore, the order passed by the Competent Authority Under Section 39 does not fall within the ambit and scope of Section 97 and for that reason Annex.5 cannot be sustained with reference to Section 97.

12. This brings to the question raised by the learned Counsel for the respondent that order Annex. 1, operation of which has been stayed, itself is not sustainable in law inasmuch as the order, it is alleged, has been made in breach of principles of natural justice.

13. It is apparent from the facts noticed above that definite allegations have been made that at the time of contesting election respondent No.3 was having more than two children and that also included a child born after 27th Nov., 1995 and therefore, the respondent was disqualified in terms of Section 19(1) read with proviso (iv) to hold the office of Sarpanch. The respondent has taken a definite stand that he had four children at the time of contesting election but all the children were born to him prior to the relevant date 27th Nov., 1995. In fact, he has taken the stand that last of his four children was born in 1993 even before the commencement of the Act of 1994. The Annex. 1 only refers to the conclusion that an enquiry was conducted through Addl. Collector and in that enquiry it was found by the enquiring officer that the Sarpanch had 4th issue after 27.11.1995 and also a fifth issue on 19th Jan., 2001. However, it does not record by itself any reason for reaching that conclusion nor does disclose whether the defence taken by the respondent No.3 has been taken into consideration. On a defence being raised during the course of hearing that Annex. 1 is only formal order but a reasoned order ought to have been made by the Divisional Commissioner independent of it, the learned Counsel for respondents No. 1 & 2 was directed during the course of earlier proceedings to keep the record of the Divisional Commissioner ready for the perusal of the Court and as noticed above, the learned Counsel for the parties were allowed to inspect the same. It is apparent from the perusal of the record and has also been admitted by the counsel on both the sides that no other order except Annex. 1 appears in the record of the Divisional Commissioner. Thus, it is apparent that the order fall short of the requirement of a reasoned order affecting the rights of respondent No.3 adversely.

14. For the purpose of finding whether principles of natural justice applies to such proceedings, or whether applicability of such principles is excluded, one does not have to call in aid general principles. It is inherent into the scheme of Section 39, when it requires that order has to be made by the Competent Authority after giving the affected party an opportunity of being heard. That provision makes it a fundamental requirement that principles of natural justice are to be adhered to by the Competent Authority before he makes an order of such far reaching consequences against which as per the case of the petitioners also, no statutory remedy is provided and the only remedy available to such a person who has suffered an order Under Section 97 is to have recourse to a remedy of judicial review by this Court. The minimum requirement of such an order, apart from other requirement of principles of natural justice is that the order must inform for itself the reasons for the making of the order. Mere recording of conclusion is not enough as recording of conclusions do not furnish necessary linkage between the chain of reasons through which such conclusion can be reached. That is only possible after considering the respective contentions raised before the authority, weighing the evidence led before him and his reasons for acceptance or discarding them. He may not be required to make an elaborate order but the basic requirement of disclosing the material which has been taken into consideration and the reason for which the material has been accepted or rejected must find voice in the order.

15. Apart from this, learned Counsel for the respondent has also urged that the conclusions recorded by the Divisional Commissioner are not his own but founded on a report submitted by Asstt. Collector (Admn.) through whom an enquiry has been conducted. He has alleged that no notice of finding recorded by the Asstt. Collector (Admn.) has been given to him much less notice of hearing on findings of enquiry officer was given go him before recording his finding on that basis of such report and before passing the impugned order by the Divisional Commissioner. Copy of the said report made by Asst. Collector (Admn.) has also not been given to him before recording his conclusions. These assertions have not been denied by the respondents No. 1 & 2.

16. The only material which can be gathered is that Asstt. Collector (Admn.) has given a notice. However, the petitioner has not been apprised of the findings given by the Asstt. Collector nor an opportunity to make his submissions in respect of such findings of enquiry officer by the Divisional Commissioner, who is a Competent Authority Under Section 39 to make an order, was given. .In this view of the matter, the order Annex. 1 being apparently, in breach of principles of natural justice affecting rights of respondent No.3 Mohanlal cannot be sustained.

17. As a result, order Annex.5 is quashed for want of jurisdiction of the State Govt. to revise the orders of the Divisional Commissioner. So also Annex. 1 dated 21st March, 2001, the order passed by the Divisional Commissioner is quashed being made in breach of principles of natural justice. The Competent Authority is left free to make apropriate order after holding an enquiry in accordance with law and giving an adequate opportunity of hearing to the respondent No.3 before making any order in that respect. Such an enquiry, which is intended to be taken, may be conducted within a period of three months from now.

18. In view of the above, the petition as well as reply which is treated as Mohanlal's petition by way of counter claim stands disposed of.

19. There shall be no orders as to costs.